A BILL to repeal §55-7-13 of the Code of West Virginia, 1931, as
amended; and to amend said code by adding thereto three new
sections, designated §55-7-13a, §55-7-13b and §55-7-13c, all
relating to comparative fault; abolishing joint liability;
providing that damages be allocated to a defendant held liable
in direct proportion to that defendant’s percentage of fault;
providing for method of assessing fault of the parties;
providing exceptions; providing for severability; and defining
terms.

Be it enacted by the Legislature of West Virginia:

That §55-7-13 of the Code of West Virginia, 1931, as amended,
be repealed; and that said code be amended by adding thereto three
new sections, designated §55-7-13a, §55-7-13b and §55-7-13c, all to
read as follows:

ARTICLE 7. ACTIONS FOR INJURIES.

§55-7-13a. Comparative fault standard established.

(a) “Comparative fault” means the degree to which the fault of
a person was a proximate cause of an alleged personal injury or
death or damage to property, expressed as a percentage. Fault shall
be determined according to the provisions of section thirteen-c of
this article.

(b) In any action for damages, recovery shall be predicated
upon principles of comparative fault and the liability of each
person, including plaintiffs, defendants and nonparties who caused
the damages shall be allocated to each applicable person in direct
proportion to that person’s percentage of fault.

(c) The total of the percentages of comparative fault
allocated by the trier of fact with respect to a particular
incident or injury must equal either zero percent or one hundred
percent.

(d) This section supercedes, invalidates and repeals all other
state laws that conflict with its provisions.

(e) This section applies to all causes of action arising on or
after the effective date of its enactment.

(f) The provisions of this section are severable from one
another, so that if any provision of this section is held void, the
remaining provisions of this section remain valid.

§55-7-13b. Several liability.

(a) In any action for damages, the liability of each defendant
for compensatory damages is several only and not joint. Each
defendant is liable only for the amount of compensatory damages
allocated to that defendant in direct proportion to that
defendant’s percentage of fault and a separate judgment shall be
rendered against the defendant for that amount.

(b) To determine the amount of judgment to be entered against
each defendant, the court, with regard to each defendant, shall
multiply the total amount of all damages recoverable by the
plaintiff by the percentage of each defendant’s fault and that
amount is the maximum recoverable against each defendant.

(c) A defendant’s fault must be determined in accordance with
section thirteen-c of this article.

(d) This section supercedes, invalidates and repeals all other
state laws that conflict with its provisions.

(e) This section applies to all causes of action initiated on
or after the effective date of its enactment.

(f) The provisions of this section are severable from one
another, so that if any provision of this section is held void, the
remaining provisions of this section remain valid.

(a) Determination of fault of parties and nonparties. -–
“Fault” means an act or omission of a person, which is a proximate
cause of injury or death to another person or persons, damage to
property, or economic injury, including, but not limited to,
negligence, malpractice, medical professional liability, strict
product liability, absolute liability, liability under section two,
article four, chapter twenty-three of this code or assumption of
the risk:

(1) In assessing percentages of fault, the trier of fact shall
consider the fault of all persons who contributed to the alleged
damages regardless of whether the person was or could have been
named as a party to the suit. The fault shall include the fault
imputed or attributed to a person by operation of law, if any;

(2) Fault of a nonparty may be considered if the plaintiff
entered into a settlement agreement with the nonparty or if a
defending party gives notice no later than sixty days before the
date of trial that a nonparty was wholly or partially at fault.
The notice shall be given by filing a pleading or discovery
response in the action designating the nonparty and setting forth
the nonparty’s name and last-known address, or the best
identification of the nonparty which is possible under the
circumstances, together with a brief statement of the basis for
believing such nonparty to be at fault;

(3) In all instances where a nonparty is assessed a percentage
of fault, any recovery by a plaintiff shall be reduced in
proportion to the percentage of fault chargeable to the nonparty.
Where a plaintiff has settled with a party or nonparty before
verdict, that plaintiff’s recovery will be reduced by the amount of
the settlement or in proportion to the percentage of fault assigned
to the settling party or nonparty, whichever is greater. The
plaintiff shall promptly and fully inform all other persons against
whom liability is asserted of the terms of any such settlement;

(4) This section is not meant to eliminate or diminish any
defenses or immunities, which exist as of the effective date of
this section, except as expressly noted in this section;

(5) Assessments of percentages of fault for nonparties are
used only as a vehicle for accurately determining the fault of
named parties. Where fault is assessed against nonparties, findings
of fault do not subject any nonparty to liability in that or any
other action, nor may they be introduced as evidence of liability
or for any other purpose in any other action; and

(6) In all actions involving fault of more than one person,
unless otherwise agreed by all parties to the action, the court
shall instruct the jury to answer special interrogatories or, if
there is no jury, shall make findings, indicating the percentage of
the total fault that is allocated to each party and nonparty
pursuant to the provisions of this article. For this purpose, the
court may determine that two or more persons are to be treated as
a single person.

(b) Imputed fault. -– Nothing in this section precludes a
person from being held responsible for the portion of comparative
fault assessed against another person who was acting as an agent or
servant of the person, or if the fault of the other person is
otherwise imputed or attributed to the person by statute or common
law.

(c) Failure to take reasonable precautionary measures. -– In
any civil action, the finder of fact may assess a percentage of
fault against a plaintiff who is injured as a proximate result of
that plaintiff’s failure to take reasonable precautionary measures
that were available.

(d) Plaintiff’s involvement in felony criminal act. -- In any
civil action, a defendant is not liable for damages that the
plaintiff suffers as a result of the negligence or gross negligence
of a defendant while the plaintiff is attempting to commit,
committing or fleeing from the commission of a felony criminal act.

(e) Fault of a person not a manufacturer. -- A person who is
not the manufacturer of a product but is merely in the chain of its
distribution, such as a seller, distributor or installer and who
did not alter, change or modify the product in a way that created
or contributed to the alleged defect, may not be assessed a
percentage of comparative fault under the theory of strict
liability for accidents, injuries or damages proximately caused, in
whole or in part, by the product.

(f) Burden of proof. -– The burden of alleging and proving
comparative fault is upon the person who seeks to establish the
fault.

(g) Limitations. -– This section does not create a cause of
action. Nothing in this section alters the immunity of any person
as established by statute or common law.

(h) Inapplicability of this code section. -– This code section
is not applicable where any of the following occurs:

(1) A defendant whose conduct constitutes driving a vehicle
under the influence of alcohol, a controlled substance, or any
other drug or any combination thereof, as described in section two,
article five, chapter seventeen-c of this code, is the proximate
cause of the damages suffered by the plaintiff;

(2) A defendant whose actions constitute criminal conduct is
the proximate cause of the damages suffered by the plaintiff; or

(3) A defendant whose conduct constitutes an illegal disposal
of hazardous waste, as described in section three, article
eighteen, chapter twenty-two of this code, is the proximate cause
of the damages suffered by the plaintiff.

(I) Conflicting laws repealed. -– This section supersedes,
invalidates and repeals all other state laws that conflict with its
provisions.

(j) Applicability. -– This section applies to all causes of
action arising on or after the effective date of its enactment.

(k) Severability. -- The provisions of this section are
severable from one another, so that if any provision of this
section is held void, the remaining provisions of this section
remain valid.

NOTE: The purpose of this bill is to abolish joint liability
and establish the principle of comparative fault by which each
defendant is liable for damages according to the percentage of
fault attributed to each defendant. The bill provides exceptions.
The bill provides a method of assessing fault of the parties. The
bill also defines terms.

§55-7-13 is repealed.

§55-7-13a, §55-7-13b and §55-7-13-c are new; therefore,
strike-throughs and underscoring have been omitted.